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Firearms may become legal for mentally incompetent veterans to buy.

Veterans who have been appointed a guardian due to physical or mental incapacity, may now have more accessibility to firearms.

A new bill known as the Veterans Second Amendment Protection Act was passed in the U.S. House of Representatives that will now make it easier for veterans who have previously been deemed mentally incompetent, to purchase firearms.  The bill would require a court hearing before determining that an individual is unfit to purchase a deadly weapon.  The bill is a proposed alteration to 18 U.S.C. § 922(d)(4), which makes it illegal to sell a firearm to an individual “who has been adjudicated as a mental defective or has been committed to any mental institution.”

Currently, the Department of Veterans Affairs can add the names of veterans found mentally incapacitated or prone to blackouts to the FBI, which then adds the names to the National Instant Criminal Background Check System (NICS).  Gun merchants are required to query this system before selling a firearm to any person. Individuals whose names are on the background check system are already considered disabled by the VA, and a VA appointed guardian makes medical and financial decisions for the individual in some cases.  The proposed alteration to section 922 states that mental incapacity or an extended loss of consciousness shall not be considered adjudicated as mentally defective without a court order that the individual is a danger to himself or others.

“…the bill is intended to remove the stigma associated with mental illness…and to allow some veterans to avoid receiving a negative label associated with his or her mental health.”

In 2016 alone, the VA added approximately 32,000 names to the background check system.  The VA responded by stating that, when a veteran is found to be mentally incapable of managing his or her finances, the individual is provided with the opportunity to contest the determination and to seek relief from any reporting requirements under section 922.  At any point in time, the veteran can submit new evidence to contest the incompetency determination.  The VA requires that the clear and convincing evidence standard – which is typically used in guardianship cases – be met before a fiduciary from the VA can assist the individual with health or financial decisions.  It is unclear whether a different evidentiary standard would be used by the judge or magistrate in the proposed legislation, or whether the clear and convincing standard would remain.

According to U.S. Representative Phil Roe (R-Tenn.), the bill is intended to remove the stigma associated with mental illness, to challenge the idea that someone who is mentally ill is necessarily a danger to themselves or others, and to allow some veterans to avoid receiving a negative label associated with his or her mental health.  Roe is the Chairman of the Veterans’ Affairs Committee, an M.D., and a former veteran himself.  Roe has five co-sponsors for the bill.

“…in 2014, roughly 20 veterans died from suicide every day, and that this rate has increased 32 percent in the past fourteen years.” 

Roe stated that those who are “a danger to themselves or others should be restricted from owning a firearm,” but Roe remains concerned that veterans who receive a VA fiduciary guardian for physical ailments will have his or her Second Amendment rights curtailed unnecessarily.  The Veterans Second Amendment Protection Act is meant to prevent a VA employee, as opposed to a judge or magistrate, from determining whether a veteran is a danger to themselves or others.  Some veterans’ rights groups claim that the existing law discourages veterans from seeking treatment at VA hospitals, and that the bill would open up the system to those individuals.  The National Rifle Association is another supporter of the bill, claiming that veterans should not have their rights arbitrarily revoked by “some bureaucrat.”

However, some critics of the legislation have argued that easing the current restrictions on access to firearms would increase the chances that veterans would die from suicide.  The VA Suicide Prevention Program found that, in 2014, roughly 20 veterans died from suicide every day, and that this rate has increased 32 percent in the past fourteen years.  The VA found that over half of the deaths from suicide could be attributed to firearms, and that veterans are 21 percent more likely to commit suicide than the average population.  Among the non-deployed veteran population, those individuals are 61 percent more likely to commit suicide than the civilian population, while deployed veterans are 41 percent more likely to commit suicide than the civilian population.

“…former CIA director and Army General, David Petraeus, sent a letter to congressional leaders, claiming that the bill is irresponsible and dangerous legislation…”

The government has responded to these trends by expanding the veteran crisis line, using predictive analysis to identify individuals who are especially at risk for suicide, and expanding TeleMental health services to better reach veterans in their homes.  Data suggests that most suicides are impulsive and that easier access to firearms or other weapons, increases the rate of suicide.  Approximately 170,000 veterans are presently on the list for background checks, nearly 20,000 of whom have schizophrenia, 15,000 of whom have severe post-traumatic stress disorder, and 11,000 of whom have dementia.  Because the VA bill would be applied retroactively, the FBI would be required to purge the records of the 170,000 veterans from the background check database.

The most vocal detractor of the bill has been U.S. Representative Elizabeth Esty (D-Conn.), the representative for Newtown, CN, where the Sandy Hook Elementary School Shooting took place in 2012.  In Esty’s view, the alteration makes firearms more available to veterans in times of mental health crisis.  In addition to Esty, fourteen retired admirals and generals from all branches of the U.S. military, including former CIA director and Army General, David Petraeus, sent a letter to congressional leaders, claiming that the bill is irresponsible and dangerous legislation that puts mentally ill veterans in harm’s way.

Some Democratic members of the Veterans’ Affairs Committee argued that there should have been a hearing on the bill before it was presented for a vote.  The bill was approved by a vote of 240-175, with a dozen Democrats joining Republicans to pass the proposal.  This piece of legislation was introduced previously without successfully passing both houses of congress, but with recent repeals of gun restrictions by the Trump Administration, the bill has earned new consideration.  Individuals who are Social Security beneficiaries and are deemed mentally ill or incapable of managing their finances were previously prevented from purchasing firearms, but President Donald Trump signed a resolution to eliminate that restriction.  The rule pertaining to Social Security beneficiaries was passed by the Obama Administration in 2013 in response to the Sandy Hook shooting.

The underlying statute that prevents individuals deemed mentally incompetent from purchasing firearms is The Brady Handgun Violence Prevention Act, which was developed by and named after  James Brady, the press secretary to former President Ronald Regan.  Brady was shot during an unsuccessful assassination attempt on the president.  Additionally, in 2007 the Bush Administration signed into law the requirement that all federal agencies submit names of mentally incompetent individuals to NICS.  This measure was enacted in response to the shooting at Virginia Tech, in which a VT senior shot and killed at least 32 students and faculty after being ordered to seek outpatient mental healthcare by a judge.  It is unclear whether the trend of increasing restrictions on gun ownership will continue under the Trump Administration, or if the current bill represents a different direction for gun rights legislation.

Meredith Ballard, Senior Staff Writer Emeritus
About Meredith Ballard, Senior Staff Writer Emeritus (15 Articles)
Meredith Ballard is a 2017 graduate of Campbell Law School and served as a Senior Staff Writer for the Campbell Law Observer. She is originally from New Bern, North Carolina and graduated from Appalachian State University in 2014 with a Bachelor of Science in Psychology. She is also a graduate of the Mira Foundation’s guide dog program in Quebec, Canada. After her first year of law school, Meredith interned at Disability Rights North Carolina, a protection and advocacy organization tasked with providing legal representation to individuals with disabilities. During her second year of law school, Meredith’s moot court team became regional finalists in the American Bar Association’s National Appellate Advocacy Competition. During the summer of 2016 Meredith will be interning at the North Carolina Medical Board. Meredith is a member of the Campbell Public Interest Law Student Association and her interests are in health law, disability law, and employment discrimination law.